Decision Date: 12/05/95 Archive Date:
12/06/95
DOCKET NO. 93- 27 209 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to restoration of a 10 percent evaluation for
bilateral hearing loss, currently evaluated as
noncompensable.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Jeffrey D. Parker, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1952 to July
1954, and from December 1954 to January 1963.
This appeal arose from a rating decision in June 1993 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.
In February 1994, a member of the Board of Veterans' Appeals
conducted a hearing in this case in Washington, DC. As that
member has since departed from the Board the veteran was
offered an opportunity to have a new hearing. The veteran
initially elected to appear at such a proceeding, however,
in August 1995, he withdrew that request. The veteran is
informed that the adjudication which follows includes a
careful consideration of all of the testimony and evidence
presented at the February 1994 proceeding.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his bilateral hearing loss is more
severely disabling than the current evaluation reflects.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the veteran's claim for entitlement to
restoration of a 10 percent schedular evaluation for
bilateral hearing loss.
FINDING OF FACT
Bilateral hearing loss is manifested by puretone thresholds
of 49 decibels in the right ear and 60 decibels in the left
ear, and by speech recognition scores of 92 percent
bilaterally.
CONCLUSION OF LAW
Restoration of a 10 percent schedular evaluation for
bilateral hearing loss is not warranted. 38 U.S.C.A. §
1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.87, Code
6100 (1994).
REASONS AND BASES FOR FINDING AND CONCLUSION
Initially, the Board notes that the veteran has presented a
claim that is "well-grounded" within the meaning of 38
U.S.C.A. § 5107(a). That is, he has presented a claim that
is plausible. The Board is also satisfied that all relevant
facts have been properly developed. No further assistance to
the veteran is required to comply with the duty to assist
him mandated by 38 U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities.
Diagnostic Code 6100 provides that an average 49 decibel
loss, coupled with a speech recognition score of 92 percent
in one ear; and an average 60 decibel loss, coupled with a
speech recognition score of 92 in the other ear, warrants a
noncompensable rating. 38 C.F.R. § 4.87, Tables VI and VII.
The veteran was granted a 10 percent evaluation in 1989,
which was reduced in 1993. As that rating was in effect for
less than 5 years, the provisions of 38 C.F.R. § 3.344 are
not for application. Smith v. Brown, 5 Vet.App. 335, 339
(1993).
The evidence of record shows that the veteran was exposed to
frequent noise exposure during the second period of service,
including artillery fire, and that he complained of
"buzzing" in the ears. Audiometric testing one year before
service separation and at service separation showed hearing
loss.
The veteran was service-connected for bilateral hearing
loss, evaluated as noncompensable, effective to January
1987. By rating decision of May 1989, the disorder was
evaluated as 10 percent disabling. By rating decision of
October 1992, the RO proposed to reduce, and by rating
decision of June 1993, reduced the evaluation for bilateral
hearing loss to a zero percent evaluation.
Based on findings at a VA audiological examination of July
1992, a right ear average pure tone hearing loss of 49, when
coupled with a right ear speech recognition score of 84
percent, results in a numeric designation of II. The left
ear average pure tone hearing loss of 56, coupled with a
speech recognition score of 92 percent, results in a numeric
designation of I. 38 C.F.R. § 4.87, Table VI. When these
results are coupled using Table VII, the appropriate
percentage evaluation is zero percent, designated as
Diagnostic Code 6100.
An evaluation summary of Steven A. Telian, M.D., dated
January 1993, included findings of a loss of hearing above
1500 hertz, and speech recognition scores of 72 percent
bilaterally. While this report is informative, the Board
finds that it is inadequate for rating purposes, in light of
the lack of verification that the speech recognition scores
were based on a Maryland CNC test. See generally, 38 C.F.R.
§ 3.385 (1994). Similarly, the reports of speech
recognition testing by Beltone, the Chelsea Hearing Air
Centre, the Professional Hearing Aid Service, and the Denson
Hearing Center are inadequate for rating purposes.
Based on findings at the latest VA audiological examination
of March 1993, a right ear average pure tone hearing loss of
49, when coupled with a right ear speech recognition score
of 92 percent, results in a numeric designation of I. The
left ear average pure tone hearing loss of 60, coupled with
a speech recognition score of 92 percent, results in a
numeric designation of II. 38 C.F.R. § 4.87, Table VI.
When these results are coupled using Table VII, the
appropriate percentage evaluation is zero percent,
designated as Diagnostic Code 6100.
Lay statements from the veteran's wife and children, dated
in February 1994, state that he has difficulty hearing, and
often misunderstands or fails to understand conversation
directed to him. At a February 1994 personal hearing before
the Board of Veterans' Appeals, the veteran testified that
he wore hearing aids from VA, that he could not hear many
words, and often misunderstands people. These lay
statements have probative value to the extent they indicate
that the veteran has hearing loss which results in loss of
auditory acuity, but they have virtually no probative value
in determining the level of hearing loss where recent
audiometric testing records the level of such loss.
"Assignment of disability ratings for hearing impairment are
derived by a mechanical application of the rating schedule
to the numeric designations assigned after audiometric
evaluations are rendered." Lendenmann v. Principi, 3
Vet.App. 345, 349 (1993). Restoration of a 10 percent
evaluation for bilateral hearing loss is, therefore, not
warranted. 38 U.S.C.A. §§ 1151, 5107 ; 38 C.F.R. § 4.87,
Code 6101.
This case does not present an exceptional or unusual
disability picture, with such related factors as frequent
hospitalizations or marked interference with employment, so
as to render impractical regular schedular standards. In
this connection, the Board finds that there is no showing
that bilateral hearing loss is productive of marked
interference with employment opportunities. An
extraschedular evaluation is thus not in order. 38 C.F.R. §
3.321(b)(1).
While the Board has considered the doctrine of affording the
veteran the benefit of any existing doubt with regard to the
issue on appeal, the record does not demonstrate an
approximate balance of positive and negative evidence as to
warrant the resolution of this matter on that basis. 38
U.S.C.A. § 5107(b).
ORDER
Restoration of a 10 percent evaluation for bilateral hearing
loss is denied.
DEREK R. BROWN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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